HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gui Xian Xu Applicant
-and-
The Ottawa Hospital Respondent
DECISION on remedy
Adjudicator: Dale Hewat Date: February 16, 2012 Citation: 2012 HRTO 337 Indexed As: Xu v. The Ottawa Hospital
Written Submissions
Gui Xu, Applicant ) Jeremy Wright, Counsel The Ottawa Hospital ) Raquel Chisolm, Counsel
INTRODUCTION
1In the Decision on the merits, 2011 HRTO 1208, the Tribunal found that the respondent had failed to meet its duty to accommodate the applicant, a Registered Nurse at the Ottawa Hospital, to the point of undue hardship after October 1, 2009, the date when the applicant was placed in the Workplace Safety and Insurance Board (“WSIB”) Labour Market Retraining (“LMR”) program. Following the Decision on the merits, the parties were asked to provide written submissions regarding the appropriate remedy.
2The applicant makes a number of submissions with respect to remedy. The applicant seeks reinstatement, with proper accommodation, to a Registered Nurse position at the Ottawa Hospital. As part of a reinstatement order, the applicant asks that issues such as the content and time-frame of a disability accommodation plan, articulation of the “bona fide” nursing requirement as they relate to the applicant, job training or orientation, the suitability of placement in a unit which does not meet the applicant’s restrictions and whether the applicant should be asked to work while she is on sick leave be addressed.
3In terms of lost income, the applicant asks to be compensated for her lost income and related benefits in her compensation package until such reinstatement and to be reimbursed for reasonable expenses incurred in mitigating her lost income. Specifically, the applicant is seeking lost income of $98,958.83 which represents 1950 hours per year x $42.44 per hour over a period of 30 months less her received employment income and her WSIB Loss of Earnings income. The applicant claims loss of dental benefits of $595.49 and repayment of a premium overpayment of $893.78. With regard to mitigation expenses, the applicant claims an amount of $7,776.00 which represents mileage expenses incurred driving to her current employer which is located 25 kilometres farther away from her home than the Ottawa Hospital. The calculation of mileage expenses is based on 50 kilometres per day x12 days per month over a period of 27 months at a rate of $.0.48
4The applicant is also requesting retroactive pension benefits to September 30, 2009, or that she be compensated for the consequent reduced value of her pension which has been valued at $14,482.65 based